Smith v. Cable Wiring Specialist, Inc.
Filing
22
OPINION and ORDER granting in part and denying in part 19 Plaintiff's Motion for Conditional Certification and Facilitation of Court-Authorized Notice. Conditional certification is granted as set forth in the Opinion and Order. Plaintiff sha ll file a revised proposed notice on or before October 10, 2014. Defendant shall file any objections to Plaintiff's revised proposal on or before October 24, 2014. See Opinion and Order for details. Signed by Judge John E. Steele on 9/25/2014. (MAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AARON SMITH, individually &
on
behalf
of
similarly
situated,
Plaintiff,
v.
Case No: 2:14-cv-277-FtM-29DNF
CABLE
INC.,
WIRING
SPECIALIST,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion for
Conditional Certification and Facilitation of Court-Authorized
Notice (Doc. #19) filed on July 29, 2014 and Defendant’s Response
(Doc. #20) filed August 12, 2014.
For the reasons set forth below,
the motion is granted in part and denied in part.
I.
Plaintiff
Aaron
Smith
(Plaintiff
or
Smith)
has
filed
a
Complaint (Doc. #1) against his former employer, Cable Wiring
Specialist, Inc. (Defendant or CWSI), on his own behalf and on
behalf
of
other
similarly
situated
individuals,
for
overtime
compensation relief under the Fair Labor Standards Act (FLSA), 28
U.S.C. §§ 201-19.
On July 29, 2014, Janio Silva (Silva) filed a
Consent to Join (Doc. #18-1) the case.
To date, no others have
joined Smith and Silva as Plaintiffs.
The underlying facts, as
set forth in the Complaint, are as follows:
Smith worked for CWSI as a cable installer and technician.
(Doc. #1, ¶ 35.)
Prior to July 2012, CWSI paid its cable
installers and technicians a piece rate without contemporaneous
overtime.
(Id. at ¶ 50.)
During that time, Smith and other
installers and technicians routinely worked in excess of 40 hours
per week but, due to the piece rate payment system, did not receive
overtime compensation.
(Id. at ¶¶ 38-43.)
The Complaint defines
similarly situated individuals as “any employee of Defendant’s
from
three
years
preceding
this
complaint
that
worked
as
technicians or installers without receiving overtime in one or
more workweeks between May 2011 and July 2012.”
(Id. at ¶ 37.)
Smith now seeks conditional certification as a collective action
and requests that the Court facilitate the notice to potential
collective action plaintiffs.
II.
An action to recover unpaid overtime compensation under the
FLSA may be maintained “against any employer (including a public
agency) in any Federal or State court of competent jurisdiction by
any
one
or
more
employees
for
and
in
behalf
of
themselves and other employees similarly situated.
himself
or
No employee
shall be a party plaintiff to any such action unless he gives his
consent in writing to become such a party and such consent is filed
in the court in which such action is brought.”
29 U.S.C. § 216(b).
The purpose of such a collective action is “to avoid multiple
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lawsuits where numerous employees have allegedly been harmed by a
claimed violation or violations of the FLSA by a particular
employer.”
Prickett v. Dekalb County, 349 F.3d 1294, 1297 (11th
Cir. 2003).
To demonstrate that plaintiffs are “similarly situated”, an
opt-in plaintiff “need show only that their positions are similar,
not
identical,
members.”
to
the
positions
held
by
the
putative
class
Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208,
1217 (11th Cir. 2001) (quotations and citations omitted).
Eleventh
Circuit
has
adopted
a
two-tiered
approach
The
to
certification, as described in Mooney v. Aramco Servs. Co., 54
F.3d 1207, 1213-14 (5th Cir. 1995):
The first determination is made at the so-called
“notice stage.” At the notice stage, the district
court makes a decision-usually based only on the
pleadings and any affidavits which have been
submitted-whether notice of the action should be
given to potential class members.
Because the court has minimal evidence, this
determination is made using a fairly lenient
standard, and typically results in “conditional
certification” of a representative class. If the
district court “conditionally certifies” the class,
putative class members are given notice and the
opportunity to “opt-in.” The action proceeds as a
representative action throughout discovery.
The second determination is typically precipitated
by a motion for “decertification” by the defendant
usually filed after discovery is largely complete
and the matter is ready for trial. . . .
Hipp, 252 F.3d at 1218.
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Before providing notice, a plaintiff must offer a “reasonable
basis” for his assertion that there are other similarly situated
employees who desire to opt-in.
Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1260 (11th Cir. 2008); Dybach v. Fla. Dep’t
of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991).
At this stage,
the Court applies a “fairly lenient standard”, Anderson v. Cagle’s
Inc., 488 F.3d 945, 953 (11th Cir. 2007), although there must be
more than counsel’s unsupported assertions, Morgan, 551 F.3d at
1261.
“Evidence of similarly situated employees who desire to opt
in may be based on affidavits of other employees, consents to join
the lawsuit filed by other employees, or expert evidence on the
existence of other similarly situated employees,” but “plaintiff's
or counsel's belief in the existence of other employees who desire
to opt in and unsupported expectations that additional plaintiffs
will
subsequently
come
forward
are
insufficient
to
justify
certification of a collective action and notice to a potential
class.”
Hart v. JPMorgan Chase Bank, N.A., No. 12-CV-00470, 2012
WL 6196035, at *4 (M.D. Fla. Dec. 12, 2012) (internal citations
and quotation marks omitted).
III.
In support of their assertion that there are additional
similarly
situated
individuals
who
offers the following evidence:
wish
to
opt-in,
Plaintiff
(1) Smith’s declaration that
“[o]ne or more of my former co-workers for Defendants have told me
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that they are interested in joining my lawsuit to recover damages
pursuant to the FLSA” (Doc. #19-6, ¶ 5); (2) Smith’s and Silva’s
declarations listing eight CWSI technicians or installers they
believe “would likely join this case if given notice of their
rights to recover wages” (Doc. #21-1, p. 2; Doc. #21-1, p. 2); and
(3) the fact that eleven former CWSI employees participated in
their own separate FLSA suits against CWSI (Doc. #19, pp. 15-16).
Under the “fairly lenient standard” appropriate at this stage of
the proceedings, the Court is satisfied that Plaintiff has provided
a reasonable basis for his assertion that there are additional
similarly situated individuals who wish to opt-in.
Accordingly,
conditional certification is warranted and the Court will now
address the definition of the putative class and the substance of
the notice to be sent to putative class members.
IV.
A.
Definition of the Putative Class
Plaintiff seeks to define the putative class as all installers
and technicians who worked for CWSI within the past three years
and who (1) were paid a “piece rate” for their work, regardless of
the number of hours worked per week; and (2) were not paid proper
overtime compensation during any work week.
(Doc. #19, p. 1.)
This would include individuals who settled FLSA claims with CWSI
but received less than the full amounts they would have recovered
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had they prevailed in an FLSA suit.
(Id.)
The Court concludes
that Plaintiff’s proposed definition is overbroad.
Plaintiff claims that CWSI willfully violated the FLSA by not
paying overtime to its cable installers and technicians.
#1, ¶ 2.)
(Doc.
Willful FLSA violations are subject to a three-year
statute of limitations.
Kaplan v. Code Blue Billing & Coding,
Inc., 504 F. App'x 831 (11th Cir. 2013).
Plaintiff filed the
Complaint on May 20, 2014 and, therefore, the putative class cannot
collect for unpaid overtime that accrued prior to May 20, 2011.
Further, Plaintiff concedes that CWSI began paying overtime in
July 2012.
(Doc. #1, ¶ 2.)
Accordingly, this putative collective
action concerns only those claims for unpaid overtime that accrued
between May 20, 2011 and July 31, 2012.
Therefore, the Court
grants conditional certification for the class of individuals who
worked for Defendant as cable installers or technicians between
May 20, 2011 and July 31, 2012, were paid a piece rate, and did
not receive additional pay for all overtime hours worked in excess
of forty within a work week.
The Court rejects Plaintiff’s request that the putative class
include individuals who settled FLSA claims with CWSI but received
less than the full amount they would have recovered had they
prevailed in an FLSA suit.
Those individuals have resolved their
claims with CWSI and, therefore, cannot opt-in to this lawsuit
regardless of the amount of their recovery.
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Accordingly, the
putative class does not include anyone who has settled his or her
claim against CWSI for unpaid overtime during the relevant time
period, whether privately or in separate litigation.
B.
Content of the Notice
Plaintiff filed proposed notice documents as exhibits to its
motion (Docs. ##19-1 to 19-3), to which CWSI raised the following
objections:
(1)
Plaintiff
should
not
be
permitted
to
send
“reminder” notices informing potential class members that the optin deadline is approaching; (2) the notice should not reference
CWSI’s prior FLSA litigation or its decision to change its pay
policies following that litigation; (3) the notice should not refer
to
CWSI’s
failure
to
provide
“proper
overtime
compensation,”
because such language implies that liability has been established;
and (4) the notice should warn that class members could be liable
for CWSI’s defense costs if the lawsuit is unsuccessful.1
(Doc.
#20, pp. 5-8.)
The Court agrees with each of CWSI’s objections.
Reminder
notices are unnecessary because they are redundant and could be
interpreted as encouragement by the Court to join the lawsuit.
Palma v. Metropcs Wireless, Inc., No. 13-CV-698, 2014 WL 235478,
at *3 (M.D. Fla. Jan. 22, 2014).
1
Likewise, the notice must not
CWSI also argues that the notice should warn prospective
plaintiffs of the need to attend trial, attend depositions, and
respond to discovery requests. The Court agrees, but notes that
such language already appears in Plaintiff’s proposed notice.
(Doc. #19-1, p. 3.)
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reference CWSI’s prior FLSA litigation, the fact that CWSI changed
its pay policies following that litigation, or include phrases,
such as “without proper overtime compensation,” which imply that
CWSI’s liability has been established.2
Because the notice will
specify that the Court has approved its contents, the use of such
language
could
be
interpreted
by
putative
class
members
as
suggesting that the Court has taken a favorable view of the merits
of Plaintiff’s case.
Lastly, the Court concludes that the notice
should warn potential class members that, should CWSI prevail, all
class members may be held responsible for CWSI’s defense costs.
White v. Subcontracting Concepts, Inc., No. 08-CV-620, 2008 WL
4925629, at *2 (M.D. Fla. Nov. 14, 2008).
In accordance with the above, Plaintiff shall file a revised
proposed notice on or before October 10, 2014.
CWSI shall file
any objections to Plaintiff’s revise proposal on or before October
24, 2014.
ORDERED:
1.
Plaintiff's Motion for Conditional Certification and
Facilitation of Court-Authorized Notice (Doc. #19) is GRANTED in
PART and DENIED in PART.
2.
Conditional certification is granted for the putative
class of individuals who worked for Defendant as cable installers
2
Of course, the notice may refer to a lack of proper overtime
compensation in the portion summarizing Plaintiff’s allegations.
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or technicians between May 20, 2011 and July 31, 2012, were paid
a piece rate, and did not receive additional pay for all overtime
hours worked in excess of forty within a work week.
3.
In accordance with this Order, Plaintiff shall file a
revised proposed notice on or before October 10, 2014.
4.
Defendant
shall
file
any
objections
to
Plaintiff’s
revised proposal on or before October 24, 2014.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2014.
Copies:
Counsel of Record
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25th
day
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